Loading...
HomeMy WebLinkAboutAgenda - 09-18-2001 - 8e i ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 18, 2001 Action Agenda Item No. _ SUBJECT: HOME/Housing Bond Programs — Meadowmont Condominiums DEPARTMENT: Housing/Comm. Development PUBLIC HEARING: (Y/N) No ATTACHMENT(S): INFORMATION CONTACT: Project Proposal Summary Tara L. Fikes, ext. 2490 Grant Agreement Development Agreement Capital Project Ordinance TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: 1. To approve the allocation of $180,000 in HOME Investment Partnership funds to the Orange Community Housing and Land Trust in the form of a grant and authorize the County Manager in consultation with the County Attorney to execute a Grant Agreement on behalf of the County. 2. To approve the Capital Project Ordinance authorizing the expenditure of$350,000 in housing bond funding and $50,000 in Housing Trust funds; and authorize the County Manager upon the County Attorney's review and approval, to execute a Development Agreement with Orange Community Housing and Land Trust on behalf of the County. BACKGROUND: The Orange Community Housing and Land Trust (OCHLT) propose to develop 32 condominiums in the Meadowmont development in Chapel Hill. The condos will be available for purchase by families earning less than 80% of the area median income. Like the Legion Road Townhomes completed earlier this year, the Meadowmont Condominiums will be developed utilizing a land trust model. By retaining ownership in the land and the use of a resale formula, the land trust model is able to keep units permanently affordable. Currently, HOME Program investments are provided as a deferred loan divided equally by the number of housing units to be produced and structured as a deferred second mortgage to the qualified homebuyer that purchased the housing units. A Deed of Trust and Promissory Note secure the investment from the homebuyer for the amount of the second mortgage. The funds would be due and payable to the County if the property were sold within the ninety-nine (99) year affordability period. Any funds returned to the County are then used for future housing and community development activities. However, as with the Legion Road Townhomes, OCHLT has asked that the HOME funds be provided as a grant rather than a deferred loan. 2 Prior to agreeing to provide HOME funds for the Legion Road Townhomes as a grant, county staff and OCHLT representatives discussed the pros and cons of providing these funds as a grant. This discussion yielded the following results. 1. Benefits • Grant funds would be a financial asset to the OCHLT, and thus would assist the organization to build fiscal credibility. • The OCHLT's ability to market the homes is enhanced when the advertised price is reduced by the amount of the public subsidy that is granted the project. This also eliminates the need to explain the terms of the public investment. • The units would become permanently affordable and would most likely not require additional public subsidy. This point was fully discussed and as a result of that conversation, the following situations were identified that might require additional public subsidy. They include: • If interest rates and housing prices increase and income levels remain stagnant, additional subsidy could be needed for future homebuyers. • If the homebuyer damages their home to such a great extent that the OCHLT does not exercise its option to purchase the home, or if the damage is not reflected in the appraised values, additional funds could be needed to renovate the home so it could be resold. • A homeowner may, apply for a maintenance or home improvement loan through the County or Town's Comprehensive Rehabilitation Program. • If a OCHLT home is for sale and there is not a buyer lined up, the OCHLT may need funds from the County or another source to buy the house or for the funds to continue to make monthly payments on the home until a buyer is identified. 2. Protection of Investment • If OCHLT ceases to exist, ownership of the land would revert to the County. • If the OCHLT homes are sold to a family earning more than 80% of the area median income, the OCHLT would repay the HOME funds. • If a homeowner is in default, the County will have the right to step in and purchase the home from the bank if the OCHLT does not. • The OCHLT Board would have the right to take over the Meadowmont Homeowners Association responsibilities if problems occur with maintenance of the property. • The OCHLT will work towards having access to a capital reserve for emergency situations. • The OCHLT will maintain a waiting list of pre-qualified homebuyers so that when a home is available; there will be a family ready to purchase the home. Based on this analysis, County staff recommends that the HOME funds allocated for this project be provided in the form of a grant. The potential benefits of granting rather than loaning these funds - permanent affordability, and the reduced sales prices — are consistent with the long term housing affordability goals of the County. Thus, the Grant Agreement developed for this project provides the financial assistance in the form of a grant and incorporates the above discussion points. s 3 Additionally, the Orange Community Housing and Land Trust (OCHLT) submitted a request for bond funding for this project. Specifically, OCHLT requested that $400,000 be granted to this development to be used for project construction costs. In June 2001, the BOCC approved the allocation of $350,000 and $50,000 in Housing Trust funds to this project. In order to facilitate this expenditure, the BOCC must approve a Capital Project Ordinance appropriating funds to this project. A Capital Project Ordinance has been prepared to accomplish this task and is included with this abstract for the Board's consideration. Second, a Development Agreement must be executed between the County and Orange Community Housing and Land Trust that secures and governs the bond funds. A Development Agreement has been developed by County staff for review by the Board and the County Attorney. FINANCIAL IMPACT: Approximately $180,000 in HOME Program funding has been allocated to the Meadowmont Condominiums Project. Bond fund award to this project represents an expenditure of $350,000 of the $1.8 million dollar Affordable Housing Bond approved in November 1997 and $50,000 of local Housing Trust Fund dollars. RECOMMENDATION(S): The Manager recommends the following: 1. Approval of the allocation of $180,000 in HOME Investment Partnership funds to the Orange Community Housing and Land Trust in the form of a grant and authorize the County Manager in consultation with the County Attorney to execute a Grant Agreement on behalf of the County. 2. Approval of the Capital Project Ordinance authorizing the expenditure of $350,000 in housing bond funding and $50,000 in Housing Trust fund dollars; and authorize the County Manager upon the County Attorney's review and approval, to execute a Development Agreement with Orange Community Housing and Land Trust on behalf of the County. Housing Bond Project Summary , Applicant: Orange Community Housing and Land Trust Project Title: Meadowmont Condominiums Request for Bond Funds: $400,000 (Actual: $350,000 from 1997 Bond funds; $50,000 Housing Trust Fund) Total Project Costs: $3,535,740 Bond Fund Leverage: 11%bond funds; 89% other funding sources Project Description: Orange Community Housing and Land Trust proposes construction of a 32 unit condominium project in the Meadowmont development in Chapel Hill. Meadowmont is a mixed-use development located off Highway 54 in Chapel Hill. In the approval process, the Town of Chapel Hill required the developer, East West Partners to provide land for 32 affordable townhouses. The developer has agreed to donated the land to develop the townhouses. OCHLT is proposing that bond funds be granted to OCHLT for construction and converted to second mortgages at a value of approximately $12,500 per unit in order to lower the cost of the first mortgage of the first time homebuyers. Target Population/Projected Outcome: 32 first time homebuyers with incomes at or below 80% of median income Project Schedule Zoning Compliance Permit - October 2001 Groundbreaking - Late Fall 2001 Begin home sales - Late Fall 2001 Project Completion - Late Summer 2002 Long Term Affordability Vehicle The Land Trust with deed restrictions will be used to insure affordability for at least 99 years with a renewal option. 5 NORTH CAROLINA ORANGE COUNTY GRANT AGREEMENT This is an AGREEMENT between ORANGE COUNTY, a general local governmental unit of the State of North Carolina, (hereinafter referred to as the "County") and ORANGE COMMUNITY HOUSING AND LAND TRUST, a North Carolina non-profit housing organization (hereinafter referred to as "OCHLT"). The effective date of this agreement is WITNESSTH WHEREAS, the Orange County HOME Consortium has designated $20,000 in FY 1999 HOME funds, $80,000 in FY 2000 HOME funds, and $80,000 in FY 2001 HOME funds for the purpose of conveying these funds to Orange Community Housing and Land Trust to assist with the development of 32 condominiums in the Meadowniont subdivision in Chapel Hill hereinafter referred to as the "Project", which property is more particularly described in Exhibit A attached hereto and made a part of this Agreement(hereinafter referred to as the "Property");and WHEREAS, the County is the lead entity of the Orange HOME Consortium, so designated in an agreement dated July 1, 1999 and as such is the lead entity in a representative capacity for all members of the Orange HOME Consortium for the purposes of carrying out the HOME Program in accordance with the Title 11 of the Cranston-Gonzalez National Affordable Housing Act (Pub. L. 101-625), (42 U.S.C. 3535(4.)rA. =.) (hereinafter referred to as the "Act"), and as further defined in the Federal Program Requirements provided by the U.S. Department of Housing and Urban Development;and WHEREAS, Orange Community Housing and Land Trust intends to develop the Property for the purpose of constructing housing opportunities for families earning 80% and below of the HUD area median income;and WHEREAS, the land would be held in a Community Land Trust (CLT), ensuring affordability of the homes for at least 99 years; and WHEREAS, a first-time homebuyer for the purposes of this program is defined as any low income household that has not owned a home within the past three (3) years including households living in manufactured housing not permanently affixed to a foundation, or owner- occupants of homes not feasible for rehabilitation; NOW, THEREFORE, in consideration' of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: 1. a. OCHLT shall construct the dwelling units defined in the Project, obtain all permits and licenses necessary to construct the homes on the Property, and comply with r--) 7 113n Ll:_, L u LJ 5 6 applicable building and zoning ordinances. HOME funds will be used for development costs for constructing the dwelling units that will be placed in the CLT. b. OCHLT shall sell the newly constructed dwelling units to qualified buyers whose income up to 80% of the area median household income by family size, as determined by the U.S. Department of Housing and Urban Development at the time of the sale. C. The period of affordability will be 99 years and will be secured by a CLT Land Lease with restrictions to ensure compliance. Further, a Declaration of Restrictive Covenants will be recorded that will incorporate a right of first refusal that may be exercised by OCHLT and/or Orange County. d. OCHLT is responsible for soliciting buyers for the dwelling units constructed on the Property. OCHLT and/or its buyers shall be responsible for securing permanent mortgage financing for the homes built on the Property. e. OCHLT is responsible for verifying the income of the homebuyers, explaining the grant program to potential homebuyers, and certifying by written documentation signed by the homebuyer that the program requirements have been fully explained. OCHLT shall maintain purchaser files as part of its Books and Records as required and for the period of time required by Section 7.c. of this Agreement. f. HOME funds will be used as part of OCHLT's construction budget. HOME assisted units must be the principal residence of the first-time homebuyer. All units, five or more, that include assistance with HOME funds, will have a HOME assisted unit designation. 2. Progress Payments. The County shall make progress payments, when requested by OCHLT, as the work progresses. Payments shall be based upon work completed and approved by County. Progress payment requests shall be based on actual costs incurred by OCHLT identified in the Budget as described in attached Exhibit B. Payment requests shall be accompanied by copies of documentation for actual expenses. Request amounts shall be verified by County for satisfactory completion prior to payment. 3. Time for Commencement and Completion. OCHLT shall commence the Work immediately following execution of contract and complete construction and sale of the townhouse within eighteen (18) months of execution of contract. Additionally, OCHLT will be responsible for providing status reports to the County quarterly detailing the project activities until project completion. The project completion date is the closing date of the purchase by a qualified buyer of the last of the 32 units to be constructed for first time homebuyers. In the event that OCHLT is unable to proceed with any aspect of the project in a timely manner, and County and OCHLT determine that reasonable extension(s) for completion will not remedy the situation, then the Termination of Agreement provisions of this Agreement (Section 6.a.) 6 7 shall pertain. OCHLT may, at its option, submit a written request for a delay of completion for County approval. The County may, at its option, approve any delay in the completion date or declare OCHLT in default. OCHLT shall monitor the constructed units for affordability for the period of affordability—ninety-nine (99)years. 4. Affordability Requirement. Each unit must remain affordable for a period of ninety- nine years. OCHLT retains full responsibility for compliance with the affordability requirement for assisted units, unless affordability restrictions are terminated due to the sale of the Property to a non-qualified buyer in which event the Resale Provisions of Section 5 of this Agreement pertain. OCHLT shall assure compliance with affordability of assisted units by having recording, at the time it sells each of the fourteen dwelling units, a "Declaration of Restrictive Covenants" (EXHIBIT C) on the Property. This Declaration shall constitute and remain a first lien on the Property during the period of affordability. It is further the responsibility of OCHLT to rerecord the Declaration of Restrictive Covenants no later than one day before the expiration of 30 years of the date of its sale of each of the fourteen dwelling units in the event the homeowner purchasing the property from OCHLT is still the owner of the dwelling unit at the time of the rerecording. County retains the right to periodically and every 30 years after the first recording of the Declaration of Restrictive Covenants on the Property to register, with the Register of Deeds of Orange. County, a notice of preservation of the Restrictive Covenants on the Property as provided in North Carolina General Statute § 4713-4 or any comparable preservation law in effect at the time of the recording of the notice of preservation. It is the intent of this Section of this Agreement that the 99 year affordability requirement contained herein be accomplished and that OCHLT and the County will do what is necessary to ensure that the same is not extinguished by the Real Property Marketable Title Act or any comparable law purporting to extinguish, by the passage of time, non possessory interests in real property. Both OCHLT and County agree to do what each must do to accomplish the 99 year affordability requirement. 5. Resale Provisions. OCHLT shall assure compliance with affordability of assisted units through the Declaration of Restrictive Covenants. The Declaration of Restrictive Covenants shall include at least the following elements in their resale provisions for the Improvements: 5.1 If the buyer no longer uses the Property as a principal residence or is unable to continue ownership, then the buyer must sell, transfer, or otherwise dispose of their interest in the Property only to a qualified homebuyer, i.e., a low-income household, one whose combined income does not exceed 80% of the area median household income by family size, as determined by the U.S. Department of Housing and Urban Development at the time of the transfer, to use as their principal residence. 7 8 5.2 If the property is sold during the term of affordability to a non-qualified homebuyer to be used as their principal residence, the net sales proceeds (sales price less selling costs and I" mortgage payoff) herein after referred to as "equity", after repayment, if required by the Note and Deed of Trust, of the initial bond investment, will be divided 50150 by the seller of the Property and the County. If the initial bond investment need not be repaid, then the entire equity realized from the sale will be divided 50150 by the seller of the Property and the County. 5.3 The resale provision shall remain in effect for the full affordability period—99 years. 6. Property Standards. HOME assisted units must, at a minimum, meet the housing quality standards of the HOME program 24 CFR 982.401. In addition, HOME assisted units must meet all applicable local codes, ordinances, and zoning ordinances. The housing must meet the accessibility requirements in the regulations referenced 24 CFR 5.105 (a) which implement the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973. 7. Miscellaneous Provisions. a. Termination of Agreement. The full benefit of the Project will be realized only after the completion of the affordability periods for all properties constructed with funds provide affordable units to low-income families. It is the County's intention that the full public benefit of this project shall be completed under the auspices of OCHLT for the assisted units as follows: i. In the event that OCHLT is unable to proceed with any aspect of the Project in a timely manner, and County and OCHLT determine that reasonable extension(s) for completion will not remedy the situation, then OCHLT will retain responsibility for requirements for any dwelling units assisted and County will make no further payments to OCHLT. ii. In the event that OCHLT, prior to the contract completion date, is unable to continue to function due to, but, not limited to, dissolution or insolvency of the organization, its filing a petition for bankruptcy or similar proceedings, or is adjudged bankrupt or fails to comply or perform with provisions of this agreement, then OCHLT shall, upon the County's request, convey to the County the properties assisted with funds. Conveyance shall be at the sole discretion of County and on a dwelling unit by dwelling unit basis. Conveyance of properties shall be on the terms set forth herein: Conveyance of properties shall occur within thirty (30) days of County and OCHLT's agreement of OCHLT's inability to continue as a viable organization. OCHLT shall convey the subject properties to County by general warranty deed, free and clear of 8 9 all liens and encumbrances of record except those which create a beneficial interest in County(Declaration of Restrictive Covenants). b. Default, Remedies. This Agreement may be terminated by a non-defaulting party upon an event of default hereunder, after written notice thereof and thirty (30) days grace period in which the defaulting party may act to cure. As used herein, the term "an event of default" shall mean and refer to a failure or act of omission by either party with respect to any undertaking, obligation, covenant or condition as set forth in this Agreement. With respect to any event of default, the non-defaulting party may exercise any right available to it at law or in equity with respect to such default. C. Books and Records. OCHLT shall maintain records of its grant requirements under this contract for a period of not less than five (5) full fiscal years following the contract completion date. i. OCHLT shall ensure access to records and financial statements, as necessary,to provide effective monitoring and evaluation of project performance. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of OCHLT's records that relate to this contract. If any audit by County discloses that payments to OCHLT were in excess of the amount to which OCHLT was entitled under this contract, OCHLT shall promptly pay to County the amount of such excess. If the excess is greater than 1% of the contract amount, OCHLT shall also reimburse County its reasonable costs incurred in performing the audit. ii. OCHLT shall maintain files of all buyers, regardless of length of occupancy, residing in assisted units. Documentation shall verify eligibility for federal HOME assisted housing, at the point of initial closing on the unit, and every subsequent buyer thereafter for the period of affordability. Information maintained shall include buyer income level, ethnic data, female head of household, and disability status and Property and Improvement purchase price. iii. OCHLT shall maintain records verifying the affordability of the assisted units. Each party agrees that any authorized representative of the County, the State, the U.S. Department of Housing and Urban Development and Comptroller General of the United States shall, at all reasonable times, have access to and the right to inspect, copy, audit and examine all of the books, records and other documents relating to the grant and the fulfillment of this Agreement for a period of five (5) fiscal years following the completion of the Project. d. Conflict with HOME Agreement. Notwithstanding anything herein to the contrary, the parties hereto acknowledge the due execution of a HOME Program Agreement between the County and the U.S. Department of Housing and Urban Development and agree that any conflict between the provisions, requirements, duties or obligations of this Agreement and the HOME Agreement shall be resolved in favor of the HOME Agreement. 9 10 e. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner here in above described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: i. To the County: Orange County c/o Housing and Community Development Department P.O. Box 8181 Hillsborough,NC 27278 ATTN: Director ii. To OCHLT: Orange Community Housing and Land Trust P.O. Box 307 Carrboro,NC 27510 ATTN: Executive Director Either the County or OCHLT may change the person or address to which any future Notice shall be given as herein provided. f. No Assignment. No transfer or assignment of the interest of OCHLT in this Agreement shall occur without the prior written consent of the County; neither may OCHLT assign this Agreement without the prior written consent of County. g. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. h. Indemnification. To the extent legally possible, OCHLT shall indemnify and hold County, its officers, agents, and employees, harmless from and against any and all claims, actions, liabilities, costs, including attorney fees and other costs of defense, arising out of or in any way related to any act or failure to act by OCHLT, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, OCHLT shall, upon County's tender, defend the same at OCHLT's sole cost and expense,promptly satisfy any judgment adverse to County or to County and OCHLT jointly, and reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by County. i. Subcontracting. OCHLT shall not subcontract work under this contract, in whole or in part, without County's prior written approval. OCHLT shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all applicable federal, state, and local laws, rules, ordinances, and regulations at all times and in the performance of the work and to comply with all obligations of OCHLT specified in this contract. Notwithstanding County's approval of a subcontractor, OCHLT shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor OCHLT shall indemnify, defend, and hold County harmless from all claims of its contractors. 10 11 j. No Joint Venture or Agency. The County and OCHLT each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or OCHLT under this Agreement, shall be deemed or construed to create any relationship of joint venture,partnership or agency between the parties. k. Effect of Waiver or Forbearance. No failure by the County to insist upon the strict performance of any term or condition of this Agreement, or to exercise any right or remedy upon the breach by OCHLT of any of its obligations, agreements, or covenants hereunder, shall be a waiver of such affected term or condition or of such breach; nor shall any forbearance by the County to seek a remedy for any breach by OCHLT be a waiver by the County of its rights and remedies with respect to that or any other breach. 1. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of North Carolina. Any litigation arising out of this Agreement shall be brought in courts sitting in North Carolina, with venue in Orange County. M. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. If any provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be or become invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. The County and OCHLT agree to substitute for such provision of this Agreement or the application thereof determined to be invalid or unenforceable, such other provision as most closely approximates, in a lawful manner, such invalid, illegal or unenforceable provision. If the County and OCHLT cannot agree, they shall apply to a court of competent jurisdiction to substitute such provision as the court deems reasonable and judicially valid, legal and enforceable. Such provision determined by the court shall automatically be deemed part of this Agreement ab initio. n. Equal Opportunity. OCHLT shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, political affiliation or belief, age, handicap, or familial status in the implementation of this Project. Further, OCHLT shall provide a Statement regarding the utilization of minority and women- owned businesses in the planning and development of the Project. This statement will be Exhibit D to this agreement. o. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. p. Gender; Singular and Plural. As used herein, the neuter gender includes the feminine and masculine. The masculine includes the feminine and neuter, and the feminine includes the masculine and neuter and each includes a corporation, partnership or other legal entity when the context so requires. The singular number includes the plural and vice versa, whenever the context so requires. 11 12 q. Recording. The parties hereto agree that upon notice to the other and at its own cost and expense, a party may record this Agreement in the Office of Register of Deeds for Orange County. r. Compliance with Laws. To the extent applicable, each party hereto agrees to comply with all laws, ordinances and regulations affecting the Property from and after the date hereof. Without limiting the generality of the foregoing, OCHLT shall comply with all federal, state and local laws, regulations and ordinances applicable to the expenditure of funds provided by the County, to purchase and develop the Property. S. Publicity; Signage. OCHLT agrees to provide such publicity with respect to the County's participation in the development of the Property as the County shall reasonably require. Any signage at the Property shall acknowledge the County's role and contribution. t. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute on and the same instrument. U. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or OCHLT shall be deemed or construed by the parties or any third party to create any relationship of third party beneficiary, including third party principal or agent, or to create any right, claim or cause of action against the County, OCHLT or any of their respective officers, agents or employees by any third party. V. Performance of Government Functions. Notwithstanding anything in this Agreement which may be to the contrary, nothing contained in this Agreement shall in any way stop, limit or impair the County from exercising or performing any regulatory, policing or governmental powers or functions with respect to the Property including, without limitation, inspection of the Property in the performance of such functions. 12 13 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have set their hands and seals on the day and year first above written. COUNTY OF ORANGE,NORTH CAROLINA (SEAL) John M. Link,Jr., County Manager ATTEST: Beverly A. Blythe Clerk to the Board of Commissioners Approved as to form and legality Geoffrey Gledhill, County Attorney This document has been preaudited in accordance with the N.C. Local Government and Fiscal Control Act. Kenneth Chavious, Finance Director NORTH CAROLINA ORANGE COUNTY This is to certify that on this day personally came before me Beverly A. Blythe, with whom I am personally acquainted,and being by me duly sworn, says that John M. Link,Jr. is the County Manager of Orange County, NC, and that she the said Beverly A. Blythe, is the Clerk to the Board of Commissioners of the County of Orange, the body politic and corporate named within and which executed the foregoing instrument; that she knows the common seal of said County; that the seal affixed to said instrument is said common seal; that the name of Orange County was subscribed thereto by the said County Manager of Orange County, NC and said Beverly A. Blythe subscribed their names hereto and said common seal was affixed, all by order of the Board of County Commissioners of Orange County and that said instrument is the act and deed of Orange County. Witness my hand and notarial seal, this the —day of 2001. Notary Public My commission expires: 13 14 , ORANGE COMMUNITY HOUSING AND LAND TRUST (SEAL) President ATTEST: Secretary NORTH CAROLINA ORANGE COUNTY I, , Notary Public in and for the above named County and State, do hereby certify that on this day personally appeared before me with whom I am personally acquainted, who, being by me duly sworn, says at he is Secretary and that is President of Orange Community Housing and Land Trust, a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its President, sealed with its corporate seal and attested to by its Secretary. Witness my hand and notarial seal, this the day of 2001. Notary Public My commission expires: 14 15 NORTH CAROLINA ORANGE COUNTY DEVELOPMENT AGREEMENT This is an AGREEMENT between ORANGE COUNTY, a general local governmental unit of the State of North Carolina, (hereinafter referred to as the "County") and ORANGE COMMUNITY HOUSING AND LAND TRUST, a North Carolina non-profit housing organization (hereinafter referred to as "OCHLT"). The effective date of this agreement is WITNESSTH WHEREAS, the County, in the implementation of the Orange County Affordable Housing Bond Program solicited applications for funding from interested non-profit organizations; WHEREAS, OCHLT submitted an application for Housing Bond funding on May 30, 2001 for $400,000 in the form of a grant for New Owner-Occupied Housing Construction approved by the Board of County Commissioners on June 25, 2001 by appropriating $350,000 in Housing Bond funds and$50,000 in Housing Trust funds to the below described project; and WHEREAS, OCHLT proposes to develop 32 condominiums at the Meadowmont development in Chapel Hill for first-time homebuyers earning less than 80% of the HUD area median income; and WHEREAS, Orange Community Housing and Land Trust intends to develop the Property for the purpose of constructing housing opportunities for families earning 80% and below of the HUD area median income in partnership with the Community Land Trust in Orange County, Incorporated;and WHEREAS, the land would be held in a Community Land Trust (CLT), ensuring affordability of the homes for at least 99 years;and WHEREAS, a first-time homebuyer for the purposes of this program is defined as any low income household that has not owned a home within the past three (3) years including households living in manufactured housing not permanently affixed to a foundation, or owner- occupants of homes not feasible for rehabilitation. WHEREAS, OCHLT agrees to utilize bond funds and housing trust funds provided by the County for the purpose of constructing 32 condominiums for first-time homebuyer families as described in their bond application dated May 30, 2001 which is EXHIBIT B to this Agreement, and hereinafter referred to"the Project". 16 NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: 1. a. OCHLT shall construct the dwelling units defined in the Project, obtain all permits and licenses necessary to construct the homes on the Property, and comply with applicable building and zoning ordinances and the N.C. Housing Finance Agency Energy Standards. The Project shall be undertaken without residential displacement. b. OCHLT shall sell the newly constructed dwelling units to qualified buyers whose income up to 80% of the area median household income by family size, as determined by the U.S. Department of Housing and Urban Development at the time of the sale. C. The bond funding and housing trust funding provided by the County will be provided as a grant at the time of sale to them. d. The period of affordability will be 99 years and will be secured by a CLT Land Lease with restrictions to ensure compliance. Further, a Declaration of Restrictive Covenants that will incorporate a right of first refusal that may be exercised by OCHLT and/or Orange County. e. OCHLT is responsible for soliciting buyers for the dwelling units constructed on the Property. OCHLT and/or its buyers shall be responsible for securing permanent mortgage financing for the homes built on the Property. f. OCHLT is responsible for verifying the income of the homebuyers, explaining the second mortgage program to potential homebuyers and certifying by written documentation signed by the homebuyer that the program requirements have been fully explained. OCHLT shall maintain purchaser files as part of its Books and Records as required and for the period of time required by Section 6.c. of this Agreement. 2. Progress Payments. The County shall make progress payments, when requested by OCHLT, as the work progresses. Payments shall be based upon work completed and approved by County. Progress payment requests shall be based on actual costs incurred by OCHLT identified in the Budget as described in attached Exhibit B. Payment requests shall be accompanied by copies of documentation for actual expenses. Request amounts shall be verified by County for satisfactory completion prior to payment. 3. Time for Commencement and Completion. Actual construction must begin within three (3) years of the original application date. OCHLT will responsible for providing status reports to the County quarterly detailing the project activities until project completion. In addition, OCHLT agrees to furnish to the County a copy of its annual audit performed by a certified public accountant within 90 days of the end of each fiscal year until the Project is complete. 17 The project completion date is the closing date of the purchase by a qualified buyer of the last of the 32 units to be constructed for first time homebuyers. In the event that OCHLT is unable to proceed with any aspect of the project in a timely manner, and County and OCHLT determine that reasonable extension(s) for completion will not remedy the situation, then the Termination of Agreement provisions of this Agreement (Section 6.a.) shall pertain. OCHLT may, at its option, submit a written request for a delay of completion for County approval. The County may, at its option, approve any delay in the completion date or declare OCHLT in default. OCHLT shall monitor the constructed units for affordability for the period of affordability — ninety-nine (99) years. Final contract completion date shall be the latest end date of all assisted unit affordability periods. 4. Affordability Requirement. Each unit must remain affordable for a period of ninety- nine years. OCHLT retains full responsibility for compliance with the affordability requirement for assisted units, unless affordability restrictions are terminated due to the sale of the Property to a non-qualified buyer in which event the Resale Provisions of Section 5 of this Agreement pertain. OCHLT shall assure compliance with affordability of assisted units by having recording, at the time it sells each of the fourteen dwelling units, a "Declaration of Restrictive Covenants" (EXHIBIT C) on the Property. This Declaration shall constitute and remain a first lien on the Property during the period of affordability. It is further the _responsibility of OCHLT to rerecord the Declaration of Restrictive Covenants no later than one day before the expiration of 30 years of the date of its sale of each of the fourteen dwelling units in the event the homeowner purchasing the property from OCHLT is still the owner of the dwelling unit at the time of the rerecording. County retains the right to periodically and every 30 years after the first recording of the Declaration of Restrictive Covenants on the Property to register, with the Register of Deeds of Orange County, a notice of preservation of the Restrictive Covenants on the Property as provided in North Carolina General Statute § 47B-4 or any comparable preservation law in effect at the time of the recording of the notice of preservation. It is the intent of this Section of this Agreement that the 99 year affordability requirement contained herein be accomplished and that OCHLT and the County will do what is necessary to ensure that the same is not extinguished by the Real Property Marketable Title Act or any comparable law purporting to extinguish, by the passage of time, non possessory interests in real property. Both OCHLT and County agree to do what each must do to accomplish the 99 year affordability requirement. 5. Resale Provisions. OCHLT shall assure compliance with affordability of assisted units through the Declaration of Restrictive Covenants. The Declaration of Restrictive Covenants shall include at least the following elements in their resale provisions for the Improvements: 5.1 If the buyer no longer uses the Property as a principal residence or is unable to continue ownership, then the buyer must sell,transfer, or otherwise dispose of 18 their interest in the Property only to a qualified homebuyer, i.e., a low-income household, one whose combined income does not exceed 80%of the area median household income by family size, as determined by the U.S. Department of Housing and Urban Development at the time of the transfer, to use as their principal residence. 5.2 If the property is sold during the term of affordability to a non-qualified homebuyer to be used as their principal residence, the net sales proceeds (sales price less selling costs and P mortgage payoffi herein after referred to as "equity", after repayment, if required by the Note and Deed of Trust, of the initial bond investment, will be divided 50150 by the seller of the Property and the County. If the initial bond investment need not be repaid, then the entire equity realized from the sale will be divided 50150 by the seller of the Property and the County. 5.3 The resale provision shall remain in effect for the full affordability period—99 years. 6. Miscellaneous Provisions. a. Termination of Agreement.The full benefit of the Project will be realized only after the completion of the affordability periods for all properties constructed with funds provide affordable units to low-income families. It is the County's intention that the full public benefit of this project shall be completed under the auspices of OCHLT for the assisted units as follows: i. In the event that OCHLT is unable to proceed with any aspect of the Project in a timely manner, and County and OCHLT determine that reasonable extension(s) for completion will not remedy the situation, then OCHLT will retain responsibility for requirements for any dwelling units assisted and County will make no further payments to OCHLT. ii. In the event that OCHLT,prior to the contract completion date, is unable to continue to function due to,but, not limited to, dissolution or insolvency of the organization, its filing a petition for bankruptcy or similar proceedings, or is adjudged bankrupt or fails to comply or perform with provisions of this agreement, then OCHLT shall, upon the County's request, convey to the County the properties assisted with funds. Conveyance shall be at the sole discretion of County and on a dwelling unit by dwelling unit basis. Conveyance of properties shall be on the terms set forth herein: Conveyance of properties shall occur within thirty (30) days of County and OCHLT's agreement of OCHLT's inability to continue as a viable organization. OCHLT shall convey the subject properties to County by general warranty deed, free and clear of all liens and encumbrances of record except those which create a beneficial interest in County(Declaration of Restrictive Covenants and Deed of Trust). 19 b. Default, Remedies. This Agreement may be terminated by a non-defaulting party upon an event of default hereunder, after written notice thereof and thirty (30) days grace period in which the defaulting party may act to cure. As used herein, the term "an event of default" shall mean and refer to a failure or act of omission by either party with respect to any undertaking; obligation, covenant or condition as set forth in this Agreement. With respect to any event of default, the non-defaulting party may exercise any right available to it at law or in equity with respect to such default. C. Books and Records. OCHLT shall maintain records of its grant requirements under this contract for a period of not less than five (5) full fiscal years following the contract completion date. i. OCHLT shall ensure access to records and financial statements, as necessary, to provide effective monitoring and evaluation of project performance. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of OCHLT's records that relate to this contract. If any audit by County discloses that payments to OCHLT were in excess of the amount to which OCHLT was entitled under this contract, OCHLT shall promptly pay to County the amount of such excess. If the excess is greater than 1% of the contract amount, OCHLT shall also reimburse County its reasonable costs incurred in performing the audit. ii. OCHLT shall maintain files of all buyers,regardless of length of occupancy, residing in assisted units. Documentation shall verify eligibility for federal assisted housing, at the point of initial closing on the unit, and every subsequent buyer thereafter for the period of affordability. Information maintained shall include buyer income level, ethnic data, female head of household, and disability status and Property and Improvement purchase price. iii. OCHLT shall maintain records verifying the affordability of the assisted units. d. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner here in above described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided,be as follows: i. To the County: Orange County c/o Housing and Community Development Department P.O. Box 8181 Hillsborough,NC 27278 ATTN: Director 20 ii. To OCHLT: Orange Community Housing and Land Trust P.O. Box 407 Hillsborough,NC 27278 ATTN: Executive Director Either the County or OCHLT may change the person or address to which any future Notice shall be given as herein provided. e. No Assignment. No transfer or assignment of the interest of OCHLT in this Agreement shall occur without the prior written consent of the County; neither may OCHLT assign this Agreement without the prior written consent of County. f. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. g. Indemnification. To the extent legally possible, OCHLT shall indemnify and hold County, its officers, agents, and employees, harmless from and against any and all claims, actions, liabilities, costs, including attorney fees and other costs of defense, arising out of or in any way related to any act or failure to act by OCHLT, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, OCHLT shall, upon County's tender, defend the same at OCHLT's sole cost and expense, promptly satisfy any judgment adverse to County or to County and OCHLT jointly, and reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by County. h. Subcontracting. OCHLT shall not subcontract work under this contract, in whole or in part, without County's prior written approval. OCHLT shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all applicable federal, state, and local laws, rules, ordinances, and regulations at all times and in the performance of the work and to comply with all obligations of OCHLT specified in this contract. Notwithstanding County's approval of a subcontractor, OCHLT shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor OCHLT shall indemnify, defend, and hold County harmless from all claims of its contractors. i. No Joint Venture or Agency. The County and OCHLT each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or OCHLT under this Agreement, shall be deemed or construed to create any relationship of joint venture,partnership or agency between the parties. j. Effect of Waiver or Forbearance. No failure by the County to insist upon the strict performance of any term or condition of this Agreement, or to exercise any right or remedy upon the breach by OCHLT of any of its obligations, agreements, or covenants hereunder, shall be a waiver of such affected term or condition or of such breach; nor shall any forbearance by the County to seek a remedy for any breach by OCHLT be a waiver by the County of its rights and remedies with respect to that or any other breach. 21 k. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of North Carolina. Any litigation arising out of this Agreement shall be brought in courts sitting in North Carolina, with venue in Orange County. 1. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. If any provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be or become invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. The County and OCHLT agree to substitute for such provision of this Agreement or the application thereof determined to be invalid or unenforceable, such other provision as most closely approximates, in a lawful manner, such invalid, illegal or unenforceable provision. If the County and OCHLT cannot agree, they shall apply to a court of competent jurisdiction to substitute such provision as the court deems reasonable and judicially valid, legal and enforceable. Such provision determined by the court shall automatically be deemed part of this Agreement ab initio. M. Equal Opportunity. OCHLT shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, political affiliation or belief, age, handicap, or familial status in the implementation of this Project. Further, OCHLT shall provide a Statement regarding the utilization of minority and women- owned businesses in the planning and development of the Project. This statement will be Exhibit D to this agreement. n. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. o. Gender; Singular and Plural. As used herein, the neuter gender includes the feminine and masculine. The masculine includes the feminine and neuter, and the feminine includes the masculine and neuter and each includes a corporation, partnership or other legal entity when the context so requires. The singular number includes the plural and vice versa, whenever the context so requires. P. Recording. The parties hereto agree that upon notice to the other and at its own cost and expense, a party may record this Agreement in the Office of Register of Deeds for Orange County. q. Compliance with Laws. To the extent applicable, each party hereto agrees to comply with all laws, ordinances and regulations affecting the Property from and after the date hereof. Without limiting the generality of the foregoing, OCHLT shall comply with all federal, state and local laws, regulations and ordinances applicable to the expenditure of funds provided by the County,to purchase and develop the Property. 22 r. Publicity; Signage. OCHLT agrees to provide such publicity with respect to the County's participation in the development of the Property as the County shall reasonably require. Any signage at the Property shall acknowledge the County's role and contribution. S. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute on and the same instrument. t. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or OCHLT shall be deemed or construed by the parties or any third party to create any relationship of third party beneficiary, including third party principal or agent, or to create any right, claim or cause of action against the County, OCHLT or any of their respective officers, agents or employees by any third party. U. Performance of Government Functions. Notwithstanding anything in this Agreement which may be to the contrary, nothing contained in this Agreement shall in any way stop, limit or impair the County from exercising or performing any regulatory, policing or governmental powers or functions with respect to the Property including, without limitation, inspection of the Property in the performance of such functions. c 23 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have set their hands and seals on the day and year first above written. COUNTY OF ORANGE, NORTH CAROLINA (SEAL) John M. Link, Jr., County Manager ATTEST: Beverly A. Blythe Clerk to the Board of Commissioners Approved as to form and legality Geoffrey Gledhill, County Attorney This document has been,preaudited in accordance with the N.C. Local Government and Fiscal Control Act. , Kenneth Chavious, Finance Director NORTH CAROLINA ORANGE COUNTY This is to certify that on this day personally came before me Beverly A. Blythe, with whom I am personally acquainted, and being by me duly sworn, says that John M. Link, Jr. is the County Manager of Orange County, NC, and that she the said Beverly A. Blythe, is the Clerk to the Board of Commissioners of the County of Orange, the body politic and corporate named within and which executed the foregoing instrument; that she knows the common seal of said County; that the seal affixed to said instrument is said common seal; that the name of Orange County was subscribed thereto by the said County Manager of Orange County, NC and said Beverly A. Blythe subscribed their names hereto and said common seal was affixed, all by order of the Board of County Commissioners of Orange County and that said instrument is the act and deed of Orange County. Witness my hand and notarial seal,this the day of 2001. Notary Public My commission expires: 1 24 , ORANGE COMMUNITY HOUSING AND LAND TRUST (SEAL) President ATTEST: Secretary NORTH CAROLINA ORANGE COUNTY I, , Notary Public in and for the above named County and State, do hereby certify that on this day personally appeared before me with whom I am personally acquainted, who, being by me duly sworn, says at he is Secretary and that is President of Orange Community Housing and Land Trust, a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its President, sealed with its corporate seal and attested to by its Secretary. Witness my hand and notarial seal, this the day of 2001. Notary Public My commission expires: 25 Affordable Housing Program Capital Project Ordinance Be it ordained by the Orange County Board of County Commissioners that pursuant to Section 13.2 of Chapter 159. of the General Statutes of North Carolina, the following capital project is hereby adopted. Section 1. The project authorized provides funds to fund housing activities in the following categories: land acquisition; housing development; and homeownership. The project is financed by proceeds from the 1997 voter approved bond referendum and from Housing Trust funds. Section 2. The officers of the County are hereby directed to proceed with the project within the budget contained herein. Section 3. The following revenue is anticipated to complete this project: Through FY Through FY 2000-01 FY 2001-02 2001-02 Sales Tax $0 $0 $0 Bond Funds $937,500 $350,000 $1,287,500 Private Placement $0 $0 $0 Fees $0 $0 $0 Housing Trust Funds $0 $50,000 $50,000 Total Funding_ $937,500 $400,000 $1,337,500 Section 4. The following amount is appropriated for this project: Through FY Through FY 2000-01 FY 2001-02 2001-02 Land EmPOWERment $90,000 $0 $90,000 Habitat for Humanity $460,000 $0 $460,000 Total Land $550,000 $0 $550,000 Design $0 $0 $0 Construction $0 $0 Scarlett Drive $140,000 $0 $140,000 EmPOWERment $247,500 $0 $247,500 Meadowmont Condominiums $0 $400,000 $400,000 Total Construction $387,500 $400,000 $787,500 Other 1 $0 $0 $0 Total Costsl $937,500 $400,000 1 $1,337.500 Section 5. This ordinance supersedes previous Affordable Housing Capital Project Ordinances for Orange County Government. Section 6. This ordinance shall remain in effect until June 30, 2002. Adopted this 18`h day of September 2001.